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Governor Lamont's Executive Order 7JJJ: Worker's Compensation Benefits for a COVID-19 Diagnosis?

July 28, 2020

Following a trend seen in other states, Connecticut's Governor Ned Lamont on July 24 issued a new executive order changing the framework for handling COVID-19-related workers’ compensation cases. The order creates a rebuttable presumption that an employee’s COVID-19 diagnosis from mid-March to mid-May was an “occupational disease arising out of and in the course of employment,” potentially entitling an infected employee to certain benefits. The order also amends Conn. Gen. Stat. Sec. 31-290a to create additional liability for employers who interfere with such claims.

Ordinarily, employees who contract illnesses must show some connection to the workplace in order to receive benefits under the state workers’ compensation program. However, the new order specifies that an employee who has missed a day or more of work between March 10, 2020 and May 20, 2020, “due to either a diagnosis of COVID-19 or to symptoms that were diagnosed as COVID-19,” is presumed to have contracted the virus as an occupational disease arising out of and in the course of their employment, provided the employee meets the following conditions:

  1. At the direction of the employer, the employee worked outside the home during any of the two weeks prior to the “date of injury,” and had not received an offer or directive from said employer to work from home instead of work;
     
  2. If the date of the “injury” was after April 6, 2020, the employee must be employed by an “essential” employer as defined by the Department of Economic and Community Development;
     
  3. The employee’s contraction of COVID-19 was confirmed by a positive laboratory diagnostic test within three weeks of the date of injury or diagnosed and documented within three weeks of the date of injury by a licensed physician, licensed physician’s assistant, or licensed advanced practice registered nurse, based on the employee’s symptoms; and
     
  4. A copy of the positive laboratory diagnostic test results or the written COVID-19 diagnosis is provided to the employer or insurer.

In order to “rebut” this presumption, an employer will need to demonstrate by a preponderance of the evidence that the employee did not contract COVID-19 as a result of his or her employment.

The order does not offer any guidance in terms of the types of evidence that an employer could present to demonstrate that the employee was not infected with COVID-19 as a cause of their employment. However, the order does provide that any benefits received under this order will be offset by any paid leave received by the employee under the Emergency Paid Sick Leave Act (“EPSLA”).

Finally, the order continues to prohibit employers from discharging, disciplining, or discriminating against employees who file a workers’ compensation claim, but also prohibits employers from deliberately misinforming or otherwise deliberately dissuading an employee from filing a claim.

The significant takeaways for employers are:

  1. Employers who either required employees to work from home or granted the option to work from home should have a significantly reduced risk of an employee’s COVID-19 infection being considered to be arising from their employment.
     
  2. Employers who have provided paid sick leave to employees under the EPSLA are also at a reduced risk of having to pay for lost wages.
     
  3. Employers could still be liable for a workers’ compensation claim even if the employee was never actually tested for COVID-19; a COVID-19 diagnosis made solely upon the employee’s symptoms would appear to be sufficient to satisfy the third condition of the rebuttable presumption test.

Because an employee only needs to have worked “outside of the home” for one of the fourteen days preceding the first day that the employee was unable to work due to a COVID-19 diagnosis, it is quite possible that an employee could have contracted the virus at a number of other places besides work. Accordingly, it remains to be seen as to how employers can overcome the new rebuttable presumption test and demonstrate that it is more likely than not that the employee contracted COVID-19 somewhere other than work.

In the interim, employers should ensure that managers do not dissuade employees who were sick during the relevant time period from filing a claim with the state Workers’ Compensation Commission.

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